Request By:
Harlan E. Judd, Jr., Esq.
Cumberland County Attorney
Courthouse
Burkesville, Kentucky 42717
Opinion
Opinion By: Steven L. Beshear, Attorney General; Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter stating that the Cumberland County Sportsmen's Club has requested the Cumberland County Fiscal Court to adopt an ordinance prohibiting the spotlighting of deer. The proposed ordinance concerns the hunting of deer from a motor vehicle with the aid of artificial light and states in part that it is unlawful for any person or group of persons to willfully throw or cast the rays of a spotlight, headlight or other artificial light from any motor vehicle or with the aid of any motor vehicle, on any highway, or in any field or forest in an apparent attempt to locate deer by the use thereof.
You state that the proposed ordinance is more restrictive than KRS 150.390 since the violator would not have to possess a firearm capable of killing either a deer or a rabbit.
KRS 150.390(2) provides in part that it shall be unlawful for any person to cast the rays of a spotlight, jacklight or other artificial lighting devices on any highway or in any field, woodland or forest, while having in his possession or under his control, a firearm or other implement by which a deer or rabbit could be killed. Thus, one of the elements of the offense is the possession or control of a firearm or other implement capable of killing a deer.
KRS 150.390(1) provides that no person shall take, pursue, or attempt to take or pursue or otherwise molest any deer, elk, wild turkey or bear unless the Commissioner, with the approval of the Commission, finds conditions and population that warrant an open season, and then regulations shall be enacted to govern same. In OAG 79-638, copy enclosed, we said that causing a deer to bolt by use of an artipicial light even without possession or control of a weapon is a violation of KRS 150.390(1) as it would constitute the molesting of a deer unless a deer hunting season was in progress.
It was noted in the above-mentioned opinion that citing a person for such a violation might present some problems of proof at trial. It was suggested that the Department of Fish and Wildlife Resources, to avoid presenting competent testimony concerning the effects of spotlights on deer, to prove that a deer was molested, consider enactment of a regulation that identifies some of the conduct that constitutes the molesting of deer, such as spotlighting. KRS 150.390(5) states in part that it shall be unlawful to take, pursue, or attempt to take or pursue or otherwise molest any deer in any manner contrary to regulations promulgated under the authority of KRS 150.390(1)
In addition, KRS 150.360(3) provides, "No person shall hunt wildlife (except opossum, raccoon, fishes and frogs) with lights or other means designed to blind wildlife or make wildlife visible at night."
In connection with the regulation of fish and game, generally, we first direct your attention to 35 Am. Jur. 2d, Fish and Game § 1, where the following appears:
"Fish and game are classified in the law as animals ferae naturae. Their ownership, while they are in a state of freedom, is in the state in its sovereign capacity as the representative and for the benefit of all its people in common; in other words, the right of property in fish and game, so far as can be asserted before they are taken and reduced to possession, is common to all the people and cannot be claimed by any particular individual. Upon this fact of public ownership rests, to a large extent, the governmental power of regulation of fishing and hunting, for the right of the individual to take title to fish and game is a qualified one in that it is a privilege granted by the state, and may be taken away or limited as the state sees fit."
In 38 C.J.S. Game § 7 it is stated:
"By reason of the state's control over game within its limits, it is within the police power of the state legislature, subject to constitutional restrictions, to enact such general or special laws as may be reasonably necessary for the protection of the public's rights in such game, even to the extent of restricting the use or right of property in the game after it is taken or killed. Such power may be at least partially delegated, by the constitution or statute, to local governmental bodies, unless there is a constitutional provision to the contrary; and, where such power has been delegated, the regulation passed by the local body or board must be a reasonable one. This power to protect and regulate game cannot be delegated to an administrative agency, but where the legislature prescribes the policy, it can delegate to an administrative agency the determination of questions of fact or the power to fix rules and regulations to carry out the legislative policy. A statute delegating authority to a state commission with respect to game has been strictly construed and, it has been held, must be strictly complied with, as, for example, with respect to the declaration of a special person."
The court, in Cummings v. Commonwealth, Ky., 255 S.W.2d 997 (1953), said in part that the state, as trustee for the people, may conserve wildlife and regulate or prohibit its taking in any reasonable way it deems necessary for the public welfare, as long as its action does not violate any organic law of the land. The "universally recognized rule" that the state, in the exercise of its police power, has the authority to make such regulations as may be necessary to protect and conserve the game within its jurisdiction, was set forth in Commonwealth v. Masden, 295 Ky. 861, 175 S.W.2d 1004 (1943). See also Nicoulin v. O'Brien, 172 Ky. 473, 189 S.W. 724 (1916), and Draffen v. Black, 302 Ky. 775, 196 S.W.2d 362 (1946). Finally, we direct your attention to 35 Am. Jur. 2d Fish and Game § 29, where the following appears:
". . . This right to regulate fish and game may be based either on the police power of the state, or on the fact that the fish in the waters of the state as well as the game in its forests, belong to the people in their sovereign capacity, and are not the subject of private ownership. It is not only the right of the states, but their duty, to take such means as are reasonably necessary to conserve the fish and game within its jurisdiction from extermination or undue depletion. The right to kill game is a boon or privilege granted, either expressly or impliedly, by the sovereign authority, and is not a right inhering in any individual . . ."
In KRS Chapter 150, dealing with Fish and Wildlife Resources, specifically KRS 150.015, this state has set forth its purposes and policies relative to the protection and conservation of fish and wildlife resources. There is nothing to indicate that the state has delegated any of its authority in this specific area to local governments. The state, pursuant to KRS Chapter 150, has established a statutory scheme of control and regulation relative to fish and wildlife resources. If the statutes are inadequate or incomplete, the General Assembly will have to enact corrective legislation or the Department will have to adopt, where permissible, regulations. The fiscal court does not have the authority to enact ordinances concerning the protection and conservation of fish and wildlife resources, specifically the enactment of an ordinance dealing with the spotlighting of deer, where the enactment of such ordinances would produce a conflict with, additions to or subtractions from the terms, provisions and requirements of state statutes. See City of Owensboro v. Board of Trustees, 301 Ky. 113, 190 S.W.2d 1005 (1945), and Louisville & Nashville R. Co. v. Commonwealth, Ky., 488 S.W.2d 329 (1972).